Reporting Fraud, Waste, Abuse, and Employee Misconduct to the Office of the Inspector General

1-4.010 - Introduction

Department employees must comply with the rules on Government ethics, and Department attorneys also must comply with applicable rules of professional conduct. Government ethics rules implement this common value: public service is a public trust, meaning that the decisions and actions that federal employees take must be made in the best interests of the American people. See 5 C.F.R. § 2635.101. Compliance with Government ethics rules and rules of professional conduct supports the credibility of and faith in government decisions and promotes the common good.

Government-wide and Departmental ethics rules and standards have several sources, including: criminal statutes (see the compilation of statutes in 5 C.F.R. § 2635.902); the Standards of Ethical Conduct for Employees of the Executive Branch (5 C.F.R. Part 2635); Office of Personnel Management Standards of Conduct (5 C.F.R. Part 735); financial disclosure requirements (5 C.F.R. Part 2634); Departmental supplemental regulations (5 C.F.R. Part 3801 and 28 C.F.R. Part 45); Departmental Human Resources (HR) Order DOJ 1200.1, Part 11, Procedures for Complying with Ethics Requirements (Sept. 12, 2003); the Hatch Act governing federal employees’ political activity (5 U.S.C. § § 7324 et seq. and 5 C.F.R. Parts 733 & 734); Executive Order 12731, Principles of Ethical Conduct for Government Officers and Employees; and Department policies. These rules can be found on the website for the Departmental Ethics Office (DEO) at: https://www.justice.gov/jmd/departmental-ethics-office. Department employees must ensure they are aware of the Government ethics rules and the specific Government ethics policies issued by their components.

This Chapter also generally addresses requirements to report allegations of fraud, waste, abuse, or employee misconduct to OIG and/or OPR, pursuant to Department regulations at 28 C.F.R. Part 0.

[Updated September 2018]

1-4.020 - Obtaining Advice and Approval on Ethics-Related Matters

The Government ethics rules are administered within every federal agency by a Designated Agency Ethics Official (DAEO), who is responsible for the agency’s ethics program. At the Department, the DAEO is the Assistant Attorney General for Administration. The DAEO has authority to appoint Deputy Designated Agency Ethics Officials (Ethics Officials) who assist the DAEO by managing the ethics program within their components. The Ethics Official for every component in the Department can be found on the DEO website at: https://www.justice.gov/jmd/ethics-officials. Many components, including individual United States Attorneys’ Offices, have designated Ethics Advisors who provide ethics advice and answer questions concerning the applicability of ethics rules and standards.

The Ethics Official’s role includes counseling employees on avoiding Government ethics violations. In many cases, employees must consult with their Ethics Official before engaging in certain activities. The Ethics Official will make a formal recommendation for approval of the activity that requires a determination of the component head or designee, as set forth in DOJ Order 1200.1. Decisions requiring formal approval by component heads or designees with the recommendation of the Ethics Official include:

determinations that an employee’s participation in a specific party matter is appropriate, notwithstanding that a reasonable person could question the impartiality of the employee, and authorizing the employee to so act;

acceptance of certain awards;

attendance at “widely attended gatherings” when attendance includes receipt of a gift (often free registration or meals);

approval of outside employment that is related to the subject matter of the employee’s component; and

certification of public financial disclosure reports.

Likewise, while also not an exhaustive list, an employee should contact his or her designated Ethics Official for advice or approval when the employee:

is offered a gift in connection with his or her job from a person or entity outside the government, and especially when the offer involves an award, the payment of money, travel or lodging expenses, or free attendance at any event;

seeks to give a gift to a superior or accept a gift from a subordinate;

is assigned a matter in which his or her official actions may affect the employee's own financial interest or the interest of any person or entity whose interests are imputed to the employee;

is asked to participate in a matter that might cause a reasonable person to question his or her impartiality;

might realize private gain through the use of his or her official position, non-public information, government property, or official time;

engages in outside employment or other outside activity that may conflict with his or her official duties; including teaching, speaking, or writing; or

seeks employment outside the federal government.

Department attorneys have the additional responsibility of complying with applicable rules of professional conduct. When in doubt about a professional responsibility obligation, Department attorneys should consult with a professional responsibility officer (PRO) in the applicable Department component or U.S. Attorney’s Office, and/or the Department’s Professional Responsibility Advisory Office (PRAO). PRAO is available at (202) 514-0458 or DOJ.PRAO@usdoj.gov. If an emergency arises outside of regular business hours, a PRAO attorney is available to give advice and guidance to Department attorneys by calling the Justice Command Center at (202) 514-5000 and asking to speak with the PRAO duty attorney.

Disciplinary action for violating a provision of 5 C.F.R. Parts 2635 or 3801, or applicable bar rules, will not be taken by the Department against an employee who has engaged in conduct in good faith reliance upon the advice of the Ethics Official or PRAO, provided the employee has made full disclosure of all relevant facts and circumstances and followed completely the advice given. PRAO’s advice and recommendations, and approvals made by Ethics Officials are based solely on the information provided by the employee and may be invalid if the employee provides inaccurate or incomplete information. Employees remain subject to discipline for misconduct not covered by the Ethics Official’s or PRAO’s advice. Reliance on any other individual, such as a private attorney, will not shield an employee from discipline. Further, when the employee’s conduct violates a criminal statute, reliance on the advice of the Ethics Official or PRAO cannot ensure the employee will not be prosecuted. Such reliance is, however, a factor considered by the Department in selection of such cases for prosecution.

[updated September 2018]

1-4.100 - Selected Ethics Guidance

Department employees are expected to be aware of, and to comply with, all ethics-related laws, rules, regulations, and policies. As noted above, many of these rules can be found on the website for the Departmental Ethics Office (DEO) at: https://www.justice.gov/jmd/departmental-ethics-office. Department employees may contact their component’s ethics officials for guidance on component-specific rules, policies, and procedures. In addition, attorneys must follow the applicable professional responsibility rules. See 28 C.F.R. Part 77. Each jurisdictions’ bar authority’s website has a link to its rules of professional conduct. The following ethics issues are those which most often recur. Some of these issues also implicate the professional responsibility rules.

Outside Activities: While some activities undertaken outside of work create no problems, others require formal approval. For information on federal rules and Department-specific rules on outside activities, including teaching, speaking, writing, the outside practice of law, and pro bono work, go to: https://www.justice.gov/jmd/outside-employment-and-activities. For information on service on civic organizations, professional boards and committees, and state grievance committees, with or without remuneration, contact your DDAEO. Membership in certain boards of directors has been exempted from the prior approval requirement. See the DOJ Organization and Functions Manual at 29.

1-4.110 - Attorney Credentialing and Bar Lapse

Under 28 U.S.C. § 530C(c)(1), the Department is prohibited from paying compensation to an attorney who is not “duly licensed and authorized to practice in a State, territory, or the District of Columbia.”

Consistent with this statute, every individual employed as a Department attorney, regardless of title, level of position, pay plan, occupational series, or the nature of the legal work required, must continuously maintain “active” bar membership in at least one state, territory, or the District of Columbia during employment. This requirement also applies to attorneys who are not hired into attorney positions but who nonetheless provide legal advice or are otherwise engaged in the practice of law. Department attorneys with questions about whether a particular membership status satisfies the Department’s “active” membership requirement should consult an appropriate ethics advisor to determine whether the membership category meets the Department’s requirement. PRAO also provides advice on this issue. Membership in a federal court bar alone does not satisfy this requirement. Compliance with the bar membership requirement is the personal responsibility of the attorney. The Department does not pay bar membership dues or registration fees to licensing jurisdictions on behalf of its attorneys or reimburse attorneys for those costs.

Every Department attorney also is personally responsible for annually certifying compliance with this credentialing requirement.

Attorneys must immediately self-report to OPR any lapse in active bar membership during Department employment. Employees also must self-report to their component management for referral to the appropriate offices, which includes EOUSA OGC (in the case of Assistant U.S. Attorneys), PRAO, OARM, and JMD’s Finance Staff. PRAO can provide advice regarding professional responsibility issues arising from a bar membership lapse. If a component discovers that an attorney’s bar license has been suspended or revoked, the component must immediately report the matter to the appropriate offices. Pending resolution of the attorney’s legal ability to practice law, and subject to any advice and guidance that PRAO may provide, the component must take all necessary and appropriate steps to notify tribunals and temporarily reassign the employee from representational duties, counseling, and advisory work.

Because the Department does not have authority to compensate an attorney with a bar lapse, it is essential that the Department take action once it has notice that one of its attorneys has a lapse. When a Department attorney has a current bar lapse, the employing component head, U.S. Attorney, or U.S. Trustee must direct the attorney in writing immediately to cease performing representational or counseling work for the United States, or rendering any legal advice to the United States, pending reinstatement to an active bar membership status. The employing component head, U.S. Attorney, or U.S. Trustee should obtain the attorney’s written acknowledgment of that directive. The employing component head, U.S. Attorney, or U.S. Trustee may reinstate the attorney to representational, counseling, and advisory work only with documentation of the attorney’s reinstatement to active bar membership. This reinstatement should be documented.

The Department considers payment of salary to attorneys performing representational, counseling, or advisory work during a period of bar lapse to be an overpayment. The Department pursues repayment of salary paid during a bar lapse in appropriate circumstances. Attorneys with overpayment debt are entitled to seek an internal review of the indebtedness, as well as an equitable waiver and/or compromise. See 5 U.S.C. § 5584; DOJ Order 2120.4F, Waiver and Compromise of Claims for Debts Owed to the Department of Justice by Its Employees (2009).

Recent law school graduates hired as law clerks through the Attorney General’s Honors Program without active bar status should take care not to be held out as attorneys, such as by colleagues who include their names on court documents. Those without active bar status also must not engage in the practice of law.

The following sections address obligations of Department employees to report allegations of professional misconduct by Department attorneys (and related law enforcement misconduct) to the Office of Professional Responsibility (OPR), and obligations to report allegations of criminal wrongdoing or administrative misconduct by Department employees to the Office of the Inspector General (OIG). These sections also address the procedures for making such reports.

Reporting an allegation raises no inference that the allegation is well-founded. If, after consulting the guidelines below, an employee is uncertain as to whether, or where, an allegation should be reported, the employee should consult with his or her supervisor, supporting legal office, OPR, or the OIG.

All Department employees have an obligation to cooperate with OPR and OIG misconduct investigations (28 C.F.R. § 45.13) and must respond truthfully to questions posed during the course of an investigation upon being informed that their statements will not be used to incriminate them in a criminal proceeding. Employees who refuse to cooperate with OPR or OIG misconduct investigations after having been informed that their statements will not be used to incriminate them in a criminal proceeding may be subject to formal discipline, including removal. Employees are obligated to cooperate and respond truthfully even if their statements can be used against them in connection with employment matters.

All Department employees also have an obligation to cooperate with audits, inspections, evaluations, and reviews conducted by the OIG and to respond truthfully to questions posed during such matters. Interviews conducted in OIG audits, inspections, evaluations, and reviews are conducted as voluntary interviews because they do not typically involve allegations of criminal or administrative misconduct. Unless a Department employee articulates a “real and appreciable and not merely imaginary and unsubstantial” risk of incrimination, Marchetti v. United States, 390 U.S. 39, 48 (1968) (internal quotations and citations omitted), his or her cooperation in an OIG audit, inspection, evaluation, or review will be considered to be voluntary.

In certain limited situations, the above obligations regarding cooperation with OPR and OIG may not apply to Department attorneys who are representing other Department employees in their individual capacities pursuant to 28 C.F.R. § 50.15. Under such circumstances, the representing attorneys are prohibited from disclosing in the course of an OPR or OIG investigation (or an OIG audit, inspection, or evaluation) information they possess regarding the represented employee that is protected by the attorney-client privilege unless the represented employee authorizes such disclosure (see 28 C.F.R. § 50.15(a)(3)). In those limited circumstances, a Department attorney who has a good-faith basis for asserting the attorney-client privilege over information requested by OPR or OIG will not face adverse consequences in employment matters for asserting that privilege.

As provided in USAM § 1-7.120, nothing in this Policy is intended to conflict with or limit whistleblower protections, such as those provided in 5 U.S.C. §§ 2302-2303 and applicable regulations. Rather, the provisions of this Policy “are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or Executive order relating to (1) classified information, (2) communications to Congress, (3) the reporting to an Inspector General of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or (4) any other whistleblower protection. The definitions, requirements, obligations, rights, sanctions, and liabilities created by controlling Executive orders and statutory provisions are incorporated into this [Policy] and are controlling.” 5 U.S.C. § 2302(b)(13).

[updated September 2018]

1-4.300 - Reporting Attorney Professional Misconduct and Related Law Enforcement Misconduct to the Office of Professional Responsibility (OPR)

Department employees shall report to their supervisor any evidence or non-frivolous allegation that a Department attorney engaged in professional misconduct. Department employees also shall report to their supervisor any evidence or non-frivolous allegations of misconduct against Department law enforcement personnel that relate to allegations of attorney misconduct within the jurisdiction of OPR. Misconduct constitutes professional misconduct when it relates to an attorney’s responsibility to investigate, litigate, or provide legal advice. The supervisor shall evaluate whether the allegation is non-frivolous and the misconduct is of a serious nature; if so, the supervisor shall report the allegation to OPR through the component. An employee may also report misconduct allegations directly to OPR. If the evidence or allegation concerns an Assistant United States Attorney, the supervisor also shall notify EOUSA General Counsel’s Office.

If the supervisor was involved in the alleged misconduct, the supervisor must bring the evidence or non-frivolous allegation of misconduct to the attention of a higher-ranking official regardless of whether the supervisor believes the misconduct to be of a serious nature.

The decision whether to conduct an investigation of a former employee is made on a case-by-case basis. OPR obtains the approval from the Office of the Deputy Attorney General before declining to investigate or terminating an investigation on the ground that an employee has left the Department.

Judicial Statements Concerning Misconduct. Department attorneys shall report to their supervisors any statement by a judge or magistrate indicating a belief that misconduct by a Department attorney has occurred, or taking under submission a claim of misconduct. Supervisors shall report to OPR immediately any evidence or non-frivolous allegation of misconduct that is of a serious nature.

Judicial Findings of Misconduct and Requests for Review. Whenever a judge or magistrate makes a finding of misconduct by a Department attorney or requests an inquiry by the Department into possible misconduct, the employee shall immediately report the finding or request to the employee's supervisor and to OPR, regardless of whether the matter is regarded as serious or is the subject of additional litigation.

After a matter has been reported to OPR, the employee or supervisor who reported the matter, or other appropriate supervisor, must apprise OPR of any significant developments, including relevant pleadings, hearings, or rulings by the court.

Mission. Where OPR has made findings of attorney professional misconduct, those findings are referred to the Department’s Professional Misconduct Review Unit (PMRU). Consistent with memoranda issued separately by the Deputy Attorney General, the PMRU evaluates any findings of professional misconduct by OPR and, where appropriate, issues fair, timely, and consistent disciplinary decisions. The PMRU also authorizes referrals to the appropriate bar authority in those instances in which OPR concludes that a current or former Department attorney violated a rule of professional conduct during his or her tenure with the Department.

Authority of the PMRU. The PMRU has authority to handle disciplinary matters involving career Department attorneys, except for those employed in the law enforcement components and certain employees of the Executive Office for Immigration Review. The PMRU has no authority to adjudicate disciplinary actions in misconduct cases pertaining to non-career attorneys (whether appointed by the President with Senate confirmation, or otherwise politically appointed). The PMRU Chief has authority in his or her discretion to choose not to sustain findings of misconduct referred to the PMRU. The PMRU Chief also has the authority in his or her discretion to include in the PMRU disciplinary decision any poor judgment findings in reports of investigation that are closely related to the professional misconduct findings referred to the PMRU. Closely related findings are those findings that arise from the same report of investigation, are made against the same individual, and are based on the same or substantially similar conduct. The PMRU Chief's disciplinary authority includes the authority to resolve or authorize the resolution of any disciplinary action pending before the PMRU without the PMRU reaching a final decision on the merits of the action. Depending on the circumstances, the PMRU Chief may serve as the Grievance Official to a Letter of Reprimand issued by a PMRU Attorney or the Deciding Official on a suspension or removal action proposed by a PMRU Attorney. In all of its actions, the PMRU will operate in accordance with the due process requirements established in 5 U.S.C. § 7500 et seq., and 5 C.F.R. Part 752.

Bar Referrals. At the conclusion of any final disciplinary action by the PMRU, including any decision from a final appellate authority, if there is a final determination that a subject attorney committed professional misconduct implicating a rule of professional conduct or when the PMRU Chief otherwise determines that a rule of professional conduct so requires, the PMRU Chief will direct OPR to refer the subject attorney to the appropriate bar authority or authorities. For former Department attorneys, the PMRU Chief may, after receiving an OPR report of investigation finding misconduct, issue a letter advising the subject attorney of the misconduct findings and informing the subject attorney of the right to submit an objection to OPR’s findings. After receipt of an objection, if any, the PMRU Chief will determine if the matter will be referred to the appropriate bar authority under the same procedures as for Department attorneys.

The Authority of the Deputy Attorney General. The Deputy Attorney General reserves the authority to designate individuals outside of the PMRU to serve as proposing, deciding, or grievance officials in all disciplinary matters, including those involving findings of professional misconduct by OPR, or to personally serve as the proposing, deciding, or grievance official. The Deputy Attorney General also reserves the right to designate an acting PMRU Chief.

Supervisory Review of Court Filings. Before any pleading or other document concerning any non-frivolous allegation of misconduct by an attorney is filed, whether in the district court or on appeal, it must be reviewed by a supervisor who is not implicated by the allegation.

Disqualification upon Finding of Misconduct. A Department attorney who is found to have engaged in professional misconduct in a particular case shall not continue to represent the United States in that case unless approval is obtained from the responsible United States Attorney or Assistant Attorney General.

Allegations that non-Department attorneys or judges have committed misconduct shall be reported to OPR to determine whether to refer the allegation to appropriate disciplinary authorities. If OPR determines that a referral is appropriate, it will report the allegation to the disciplinary authority. Individual Department components or employees are not authorized to make such referrals.

[updated September 2018]

1-4.400 - Reporting Fraud, Waste, Abuse, and Employee Misconduct to the Office of the Inspector General

The Office of the Inspector General (OIG) in the Department of Justice is a statutorily created independent entity whose mission is to detect and deter waste, fraud, abuse, and misconduct in DOJ programs and personnel, and to promote economy and efficiency in those programs. The OIG investigates alleged violations of criminal and civil laws, as well as applicable regulations and policies, by DOJ employees and also audits and inspects DOJ programs. The Inspector General, who is appointed by the President subject to Senate confirmation, reports to the Attorney General and Congress.

Except with respect to attorney professional misconduct allegations, Department employees shall report to the OIG, to their appropriate supervisor, or to their component’s internal affairs office any evidence or non-frivolous allegation of: a violation of any law, rule, regulation, order; waste, fraud, or abuse; or criminal or serious administrative misconduct, or an investigation of allegations of criminal misconduct against any Department employee. If a Department employee reports an allegation of misconduct to a supervisor in the first instance, the supervisor shall evaluate whether the allegation at issue is non-frivolous, and, if so, the supervisor shall report it, through the component, to the OIG. See 28 C.F.R. § 0.29(b), (c). If the evidence or allegation concerns an EOUSA employee, the supervisor also shall notify EOUSA General Counsel’s Office.

Nothing in this section or Component policies and procedures should be interpreted to preclude an employee’s ability to report misconduct directly to OIG. Allegations of misconduct may be reported to the nearest OIG field office, through the online reporting form on the OIG’s website at oig.justice.gov, or as follows: